中國法院裁判說理的雙重性——以疑難刑案為對象

Abstract

The simplification of judgement reasoning in court’s has long been criticized in mainland China. Based on the practical evidences, it can be partially explained by the existence of duality of judgement reasoning, namely reasoning from written words and reasoning reading between lines. In real cases, static rules (proofing standards and sentencing reasonings), normative basis, non-normative factors (social effect and criminal policy) and judicial administration etc. can be used as the supporting methods to understand the duality. The dual reasoning overcomes limitations caused by explicit words, gains more public’s recognition towards judicial authority, and displays judges' self-value in the “intellectual competition” of counterpart reasoning, which are the inherent demand of judicial practice. This phenomenon is not only related to the application of micro-rules, but also to macro-factors, such as cultural traditions, public law concepts, judicial system and legislative technology. Surely, improving the explicit reasoning is a measure to comply with the demand of judicial transparency, judicial democracy and judicial credibility as well as the legitimacy of political discourse in the current judicial reform. However, we have to realize that there is a tension among this demand and the established judicial structure, judicial operation and even political factors etc., which is irreconcilable. Therefore, it will be difficult to eliminate the phenomenon of duality of judgement reasoning.

Date of Award	20 Dec 2019
Original language	Chinese (Traditional)
Awarding Institution	City University of Hong Kong
Supervisor	Feng LIN (Supervisor)